Tag Archives: open government

Venezuela Agonistes.

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There are two things remarkable about coverage of the Venezuelan crisis. The first is the silence of the Left in the face of it. This includes the champions of the so-called Latin American “Pink Tide” who saw in the Boliviarian Revolution an alternate developmental model that along with the left leaning regimes in Argentina, Bolivia, Brazil, Chile, Ecuador and Nicaragua offered hope for a new socialist bulwark in the Western Hemisphere that, unlike the Castro regime in Cuba, was both socialist and democratic. Or at least, that was the thought in the early 2000s. Now, rather than offer robust critiques of what went wrong, those champions have gone quiet, perhaps hugging small comfort pets against their Che Guevara t-shirts while muttering into their pillows something about the sulphuric impact of “neo-imperialism” and globalised corporate control.

The second remarkable aspect of the coverage of Venezuela is the continued misrepresentation by conservative (and even mainstream media) commentators that Venezuela demonstrates (yet again) the failures of socialism in practice. Allow me to address this fallacy.

Before I do so let’s briefly note what is clearly an organic crisis of the Venezuelan state (seen, in Gramscian terms, as economy+civil society+political society).  Regardless of external factors and interference (such as oil prices, Cuban security assistance and US government hostility) and the disloyal nature of most of the traditional opposition to the Boliviarian Movement, the crisis has at its core the incompetence and corruption of the Maduro government. The seeds for the decline were sown by Hugo Chavez himself with his prolifigate spending and cult of personality, but the bitter fruit of criminality, cronyism, patronage, partisanism and despotic maladministration ripened, then rotted under Maduro.

This not entirely surprising because in truth the Boliviarian experiment was always more populist than socialist. Socialism is not just about downwards redistribution of income and expansion of public goods and services via the use of tax revenues.  It is not just about progressive tax reform to make the rich pay their fair share. It is not just about nationalising privately held productive assets or at least strategic economic assets. It not about state ownership of the means of production. And it definitely does not involve a self-appointed authoritarian revolutionary “vanguard” telling everyone what their best interests are, what to do in pursuit of those interests, and concentrating power in a small partisan elite in order to compel others do so.

Instead, socialism involves equality in and of production, to include worker control of decision-making on everything from occupational health and safety to production levels to distribution and reinvestment of profit. Socialism involves decentralisation and local autonomy in political decision-making, to include about the distribution of public goods, social investment and economic development. It involves not just matters of production, particularly with respect to control of productive assets, but also of decision-making behaviour within production and the attendant social relations linked to it. Socialism has cooperatives as a basic unit of social integration; national populism has paramilitary militias and neighbourhood political snitches.

There is more to socialism than what I have outlined, but the point should be pretty clear: socialism is about devolving power to the people, not concentrating it in the hands of a central government. Even if a transition period is needed after bourgeois rule, the move to socialism involves expansion of the number of decisional sites that determine the material, cultural and political fortunes of the average citizen. To do so requires dismantling of a capitalist state apparatus, which is characterised by top down managerial control of public and private policy decision-making, and its replacement with a socialist state in which policy decisions ultimately rest in the hands of immediate stakeholders and are conveyed upwards into national-level platforms. The transition between the two–from a capitalist state to a socialist state–is the hard part of any change from liberal to social democracy (even more so than in violent social revolutions where the destruction of the capitalist state runs in parallel with the elimination of capitalism and its elites), and in Venezuela’s case it was never done. Both Chavez and Maduro have relied on a capitalist state to implement and enforce their populist, and increasingly authoritarian mode of governance.

Rather than socialist and democratic, the Boliviarian revolution is a left-leaning national populist regime using a state capitalist project and corporatist forms of interest group intermediation marshalled along partisan lines in order to redistribute wealth via partisan patronage networks to its support base and to its leaders. It has uncoupled wealth redistribution from productivity and, for all the achievements in education and health made under Chavez, those gains were lost once prices for the single export commodity it relies on (oil) fell and the revenues from oil experts shrunk. Corruption and incompetence, coupled with private capital flight and the exodus of the managerial class (mostly to Florida), accelerated the downward spiral, and now Venezuela is for all purposes a failed state. Inflation is stratospheric, food scarcity is rife, there are shortages of essential medical supplies, power and potable water, petrol supplies (?!) are increasingly spotty, unemployment, under-employment and crime are at all-time highs (the murder rate is 85 per 100,100 population, one of the highest in the world). Violent street protests have become the norm, and spot curfews and other coercive and legal curtailments on freedom of movement and speech are now the most widely used tools with which the Maduro regime handles dissent. For a purportedly Leftist regime, there is no worse indictment than that.

That Chavez, Maduro and their supporters refer to the Boliviarian regime as “socialist” is offered as proof  by some that it is, and that is it is therefore socialism that has failed. That is hopelessly naive. “Socialism” is the label that the Boliviarians have cloaked themselves in because they know that given its history, “populism” is not in fact very popular in Latin America. In its own way the US is finding out why that is so, but the important point to note is that there is nothing genuinely socialist about they way the Boliviarians behave.

The current reality is that the Boliviarian regime has descended from a left-leaning national populist form into an Scotch-addled kleptocracy (Venezuelans have one of the highest per capita intakes of Scotch in the world, and in recent years the regime has taken to hoarding supplies of it). In the measure that it is besieged by its own weaknesses and the rising opposition of the popular base that it ostensibly serves, it increasingly relies on coercion and criminality for its sustenance. Military and government involvement in the narcotics trade, the presence of Cuban intelligence in and out of the armed forces and security apparatus, covert links to states such as Syria and North Korea, the presence of operatives of extra-regional non-state actors such as Hezbollah in government circles–all of these factors suggest that Venezuela’s national interests are no longer foremost in the minds of the Boliviarian elite.

This has not been lost on the population, and the last year has seen over 1.5 million Venezuelans emigrate. This is on a par with Syrian and Rohinga refugee flows and amount to more than 4 million Venezuelans now living outside their motherland (with most leaving after 1999 when Chavez was first elected). The refugee crisis has impacted the relations between Venezuela, Colombia and Brazil, with their borders heavily militarised and safe passage corridors opened for migrants to proceed to countries such as Ecuador and Peru. The extent of the Venezuelan refugee crisis is now regional in nature.

Not surprisingly, there have been some moves against the Maduro regime from within the armed forces. This have failed due to basic incompetence of the plotters and the fact that the Venezuelan military is stocked with Boliviarian sycophants buttressed by Cuban intelligence agents who spend more time looking for moles and dissidents than they do improving national intelligence collection capabilities per se. The combat readiness of the Venezuelan military has been replaced by proficiency in crowd control, and the High Command is staffed by flag ranked officers who have more good conduct medals and Boliviarian revolutionary awards than they do insignia demonstrating operational proficiency in any kinetic endeavour. May the goddess help the Venezuelan armed forces should they ever pick a fight with the battle hardened Colombian military or the well-disciplined Brazilians.

For a military coup to happen, there need to be vertical and horizontal cleavages within the military and push and pull factors compelling it to act. Vertical cleavages are those between officers and the enlisted corps, including rivalries between flag, field and company ranked officers, Non Commissioned Officers (NCOs) and the enlisted soldiers they command. Horizontal cleavages are this between armed services–Army, Navy, Air Force, national gendarme, border patrol, interior ministry secret police, etc–and within those services (say, between armour and infantry in the land forces, or surface fleet and submariners in the Navy).

The Boliviarians and their Cuban advisors have been very good at purging non-loyalists from the officer corps. Their control over NCOs and enlisted personnel is a bit more tenuous, as evidenced by recent attempts to kill Maduro using a drone and an earlier helicopter attack on military installations. But the big cleavages needed to form a coup-making nucleus simply do not exist in the measure that is required, even if the push and pull factors are clearly present. The push factors are those internal to the military that compels it to act, for institutional reasons, against the government (such as loss of discipline, corruption, lack of effective military leadership etc. that erode the ability of the armed forces to discharge their basic defence functions against foreign counterparts ). The pull factors are the external societal conditions, to include family ties of military personnel and civilian elite pleading for the restoration of social order, that draw the uniformed corps towards intervention. So the coup “equation” is just half complete: the motives for intervention are present but the organisational or institutional conditions as of yet are not.

Not that a military coup is a panacea for Venezuela. It could well make things worse. Perhaps this is where a bit of good news has emerged. It turns out that the US was approached by military coup plotters for support and turned down the request. This, in spite of Donald Trump’s public statements about US military intervention against the Maduro regime. It seems that, even if not for all the right reasons, seasoned diplomats understood the downside of agreeing to the request and cooler heads prevailed.

It is praiseworthy that the US, or at least its foreign policy decision-makers, understand that Venezuelans need to be the sole owners of their collective destiny. This destiny might or might not include the reactionary wishful thinkers in the self-exiled community that has made Weston, Florida, a mini-Caracas (and whom have joined with the ageing Cuban exiles to form an anti-communist mafia that fund-raises in “dark” ways). Whether they join or not, the key to resolving the Venezuelan crisis involves providing Maduro and his entourage with a safe passage out of government and an incremental and negotiated restoration of the productive apparatus to a mix of interests of different political persuasions under an agreed upon caretaker regime. This will be a difficult process even with military tutelage and arbitration since the military itself will have to be reformed.

However, since the Boliviarian Revolution was never socialist and the capitalist state remains intact even if decrepit, the foundations for a rejuvenated economy are present. Likewise, many of the social gains made by the lower classes under the Boliviarians have taken enough social root so as to be non-removable if violence is to be avoided. So the foundational compromise underpinning the new democratic regime  seems to involve an exchange whereby a return to private ownership of some aspects of the Venezuelan economy under broader market steerage is traded for ongoing state control of strategic assets and the extension of social guarantees involving health, education, housing and welfare. The tax regime will need reforming and the art of tax evasion by the wealthy will need to be curtailed for this to happen, so it is unsure if the majority in the opposition will accept anything other than the status quo ante the emergence of the Boliviarians.

If we remember the sclerosis of Venezuelan democracy before Chavez appeared on the scene, where the two major parties–Accion Democratic and COPEI–alternated power in a concertative arrangement where elites siphoned off the country’s wealth while buying off popular consent with oil revenue-derived subsides of public goods and services, then we can understand why the back to the future scenario will not work. It will take a sincere effort by fair-minded people on both sides, Boliviarians and Opposition, to recognise that the experiment is over and the country needs a new course that is not a repeat of the past, be it recent or distant.

And there is where I will leave with a note of optimism. Unlike many Latin American countries, Venezuela has a historical precedent of reaching consensus–or at least elite agreement–on the characteristics and contours of a new political system. The 1958 “Pacto de Punto Fijo” (roughly translated as the Full Stop Pact) defined the features of the new democratic regime after years of unstable oligarchical and often violent rule. It led to the power alternation agreement between AD and COPEI under conditions of electoral competition and state control of the oil sector in which agreed upon parameters for public revenue expenditures were respected. While it deteriorated into a lighter version of the current cabal of thieves, it lasted for forty years and only fell because it did not recognise, because of its institutional myopia, the social forces that lay at the root of the Chavez phenomenon and emergence of the Boliviarian movement.

In other words, Venezuela needs a new foundational Pact the provides peaceful exit and entrance strategies to the Boliviarians and their inevitable successors. Otherwise there will be blood whether the imperialists get involved or not.

An authoritarian nut in a democratic shell.

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At the turn of the 21st century I was teaching an upper division undergraduate  course titled “Comparative Regime Transitions” in which I explored the four “waves” of democratisation that had occurred since the early 1970s in Southern Europe, Latin America, Eastern Europe and East Asia. I noted that I had also witnessed the rise of concurrent waves of new-form authoritarianism during that rough world time time frame in which old types of despotic leadership were replaced by bureaucratic authoritarians from the Left and Right in response to the crises of oligarchic, populist and weak democratic regimes. These varied from the military nationalists of the Arab world to the revolutionary regimes of Cuba, Iran and Nicaragua and the military junta led-regimes of the Southern Cone of South America, the Philippines, South Korea and Turkey. I also pointed out that, for a variety of reasons, authoritarianism was the more natural political fit for many societies organised along hierarchical lines drawn on gender, class, race, religious or ethnic differences.

My point in doing so was to remind students that contrary to the belief of those like Francis Fukuyama who claimed that the emergence of electoral (if not liberal) democracy as a seemingly global trend in the late 1980s and early 1990s signalled the “End of History” where the political and economic combination of democratic regimes and capitalist production triumphed over all others (particularly authoritarian capitalism and socialism), human history was dialectical rather than linear. There is no simple progression towards a (preferred) end state and the possibility of reversal is always latent in the move from one political-economic form to another. In this I was channeling my view that Hegelian dialectics, rather than dialectical materialism or any number of property and individual-centric “liberal” theories, best explained the superstructural dynamics inherent in political regime change. They are grounded in but not reducible to changes in production and the social division of labour attendant to it, which means that they have a pattern of historical development all of their own.

This belief comes to mind when I think of today’s widely lamented condition of globalised democratic decline and decay. In both the developed and developing world new and old democracies alike are crumbling from within, beset by a nasty combination of corruption, power-grabbing, institutional sclerosis, gerrymandering, electoral manipulation, economic inefficiency and income disparity, racial and ethnic conflict, migration pressures, youth alienation, crime, judicial bias, incompetence or indifference, poverty and assorted other social ills. This has prompted a return to authoritarianism under electoral guise; that is, in its newest version, the turn to despotism occurs under conditions of electoral rule and is instigated from within the institutional edifice of ostensibly democratic governments in response to what is claimed to be the crisis of civil society.

Here is context in order to explain.

In the 1980s a considerable body of academic writing was focused on the demise of authoritarian regimes and the restoration, resurrection or return of democratic forms of governance throughout the world. This followed on earlier academic work that focused on the causes of democratic breakdown. I was lucky to have been mentored by several of the leading figures in that discussion, and through them was exposed to the work of other intellects who together with my mentors formed what came to be known as the first generation of “transitologists,” i.e. people who studied the fluid dynamics of regimes in processes of decline or rise rather than the durable features of stable regimes. As it turns out, regardless of the specific ideology of the regime in question, authoritarians tend to fall for broadly the same reasons having to do with the nature of their rule over time. Likewise, democracies rise and fall due more to general institutional failures than whether they are right or left-leaning in nature.

(For those interested in the dynamics of authoritarian and democratic transition and who may think that recent writing on the subject is all that there is, I commend the companion four part volumes that started the whole transitology industry: The Breakdown of Democratic Regimes, Johns Hopkins, 1978 and Transitions from Authoritarian Rule, Johns Hopkins, 1986).

Into the mix came the person of Juan Linz. A Spanish born sociologist at Yale and one of the editors of The Breakdown of Democratic Regimes, Linz was more than professionally concerned about dictatorship and democracy. He had seen both in his homeland and worked hard to understand why democracies could fail from within rather than be overthrown from without. As it turns out, just like the reasons for a coup d’état, there are “push” and “pull” factors in democratic decline. The pull factors are those that come from outside the government of the day, be it a disloyal opposition, military plotting, rising civil unrest, business sabotage, irredentist or separatist strife, economic downturns, etc. These should normally be handled by the government through the institutional process into order to reach mutual satisfactory, or at least second best social outcomes: not everyone gets everything that they want but most get some of what they want. When the institutional process fails to meet expectations and achieve those solutions, the external pull to replace those in power gowns stronger if not irresistible.

Linz understood this but also knew that absent an armed insurrection or military interruption, pull factors alone could not bring down a democracy. He consequently focused on the push factors that impelled democratic governments to turn towards authoritarianism as a response to crisis. His concern was on more than the individual whims of megalomaniac presidents and political cabals intent of holding on to power. Instead, it was on deficiencies in institutional design that left some types of democracy more prone to authoritarianism than others.

He outlined a number of factors in his considerable body of work but pinpointed two, one general and one specific, that made some democracies more susceptible to the “authoritarian temptation” than others: presidential systems and the use of Executive decrees. Basically, there are two types of democratic government, presidential systems and parliamentary systems. The latter are dominated by parties that form governments based on the percentage of votes received and the ability to attract coalition partners. The government is led by a Prime Minister who is the leader of the dominant or majority power of any given coalition, but parliament remains a strong check and balance on what the government can do when it comes to policy-making. In contrast, presidential systems, also known as Executive-dominant systems, are those in which the chief executive of the nation–the president–is elected separately from the legislature (parliament or Congress). Here the Executive branch has much more power and authority to enact policy free from the checks imposed by the legislature, to the point that it is the “first amongst equals” when it comes to the three branches of democratic governance.

For Linz presidential systems have a built-in bias towards ruling without the advice and consent of the legislature or judicial review. That is where the more specific design flaw comes into play. Executive decrees or orders are designed to by-pass the legislature in order to provide efficient and decisive policy-implementation in times of crisis or emergency. Normally a president would not make use of such prerogatives if the national condition was stable and peaceful and indeed in most instances that is a case. But take a president confronted with the pull factors mentioned above and/or one who wishes to perpetuate him/herself in office, impose a specific agenda against the will of the people and its elected representatives, or in others ways benefit or take advantage of executive privilege for personal, private or political gain, then the authoritarian temptation becomes authoritarian practice.

This is the phenomena that we are seeing now. It is not just that right-wing national populists are being elected into office and using demagogic language and behaviour to advance their goals. It is not just elected post-revolutionaries like Daniel Ortega and Nicolas Maduro who have turned on their people when these take to the streets in protest against incompetence, corruption and wide-spread scarcity. It is their use of executive powers that is turning their governments into authoritarian vehicles. Donald Trump is a variant on this theme, where executive orders and decrees are used by everyone from Rodrigo Dutarte to Recap Erdogan to Maurico Macri and are championed by leading political contenders such as rightwing extremist Jair Bolsonaro in Brazil (who openly supports Dutarte’s approach to crime and waxes nostalgic about the days of military rule). In all instances these political leaders have advocated for or turned to the use of executive decrees and orders to impose unpopular or anti-democratic policies.

The situation is made worse when the powers of the presidency are defined more by custom and tradition than by law. Nowhere has that been more evident than in the Trump presidency, where time-honoured practices and norms have been repeatedly trampled by the vulgarian in the Oval Office because, as it turns out, there is nothing in law that prevents him from doing so. Presidential practice in the US, as it turns out, is about as much grounded in law as is the interior decoration of the White House because most of it is informal and therefore dependent on the president’s disposition when it comes to adherence to informal norms and customs.

Be that as it may, time and time again, using the pretext of fighting crime, restoring order or handling some other type of national emergency, executives in presidential systems have resorted to decrees and orders to accomplish their ends. And now, in a spectacle that Linz perhaps fortunately did not live to see, we have parliamentary majorities giving extraordinary powers to prime ministers in order to do the same thing. Witness Hungarian Prime Minister Victor Orban and his xenophobic policies or Polish Prime Minister Mateusz Morawiecki’s assaults on judicial independence, which come after their parties gained large coalition majorities that allow them to push through laws in spite of popular opposition or the strictures of decency and fair play.

The key point is that Linz’s bottom line is correct: the combination of a constitutionally strong executive and decree or order-making powers accorded to it is an authoritarian nut in a democratic shell. Short of changing to a parliamentary system with multiple party representation in government, the best immediate solution to the authoritarian temptation inherent in presidential systems is to strip presidents of decree or order-making privileges except in cases of dire national emergency (with what constitutes a dire national emergency spelled out in a constitutional or legal amendment). While this may not prevent the abuse of majorities in parliamentary systems to ram-rod legislation under “urgency,” it can weaken the temptation to go full authoritarian when the law does not explicitly prohibit doing so because it might cause a parliamentary revolt or conscience votes of no-confidence within the ruling coalition.

It is doubtful that any president will abolish the decree or order-making privileges. History has shown that even the most fair minded incumbents tend to leave Executive decree-making powers on the books “just in case.” One only need think of how Barack Obama used Executive Orders to muzzle leakers and whistleblowers to understand that the authoritarian  temptation is powerful even in the best of cases. So the solution has to be found elsewhere, in legislative reform and judicial review that constrain or eliminate the decree-making powers of the Executive.

Even with the cases noted, parliamentary systems are the best safeguards against the authoritarian temptation, something that can be reinforced by eliminating first-past-the-post variants and requiring supermajorities (say, two thirds) to pass legislation under urgency or emergency. A number of parliamentary regimes have in place just such mechanisms but others, including New Zealand, to my knowledge do not. In addition, in parliamentary systems where custom and practice rather than law governs much of what Prime Ministers and their cabinets do (for example, when it comes to national security), the need to increase parliament’s check and balance (if not veto) power is all the more necessary. Getting rid of simple majorities both for government formation and legislation passage is a step in that direction.

When we look at the problems of contemporary democracy, it is not enough to focus on the external or pull factors that cause or facilitate democratic decline–social media manipulation, corporate influence, rank partisanship etc. All of these are necessary but not sufficient conditions for the breakdown of democracy. What is sufficient is an inherent institutional disposition towards authoritarianism, something that the combination of presidentialism and executive decree-making authority all but assures.

Word: It is time to re-read Juan Linz and craft our remedies accordingly.

Bulk Collection, Mass Surveillance, Targeted Spying and the Issue of Consent.

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I was invited to speak at a forum in Wellington on the “Privacy Security Dilemma.” It included a variety of people from government, the private sector, academia and public interest groups. The discussion basically revolved around the issue of whether the quest for security in the current era is increasingly infringing on the right to privacy. There were about 150 people present, a mixture of government servants, students, retirees, academics, foreign officials and a few intelligence officers.

There were some interesting points made, including the view that in order to be free we must be secure in our daily lives (Professor Robert Ayson), that Anglo-Saxon notions of personal identity and privacy do not account for the collective nature of identity and privacy amongst Maori (Professor Karen Coutts), that notions of privacy are contextual rather than universal (Professor Miriam Lips), that in the information age we may know more but are no wiser for it (Professor Ayson), that mass intrusions of privacy in targeted minority groups in the name of security leads to alienation, disaffection and resentment in those groups (Anjum Rahman), and that in the contemporary era physical borders are no impediment to nefarious activities carried out by a variety of state and non-state actors (various).

We also heard from Michael Cullen and Chris Finlayson. Cullen chaired the recent Intelligence Review and Finlayson is the current Minister of Security and Intelligence. Cullen summarised the main points of the recommendations in the Review and was kind enough to stay for questions after his panel. Finlayson arrived two hours late, failed to acknowledge any of the speakers other than Privacy Commissioner John Edwards (who gave an encouraging talk), read a standard stump speech from notes, and bolted from the room as soon as as he stopped speaking.

Thomas Beagle gave a strong presentation that was almost Nicky Hageresque in its denouncement of government powers of surveillance and control. His most important point, and one that I found compelling, was that the issue is not about the tradeoff between security and privacy but between security and power. He noted that expanded government security authority was more about wielding power over subjects than about simply infringing on privacy. If I understand him correctly, privacy is a commodity in a larger ethical game.

Note that I say commodity rather than prize. “Prize” is largely construed as a reward, gain, victory or the achievement of some other coveted objective, especially in the face of underhanded, dishonest, unscrupulous and often murderous opposition.  However, here privacy is used as a pawn in a larger struggle between the state and its subjects. Although I disagree with his assessment that corporations do not wield power over clients when they amass data on them, his point that the government can and does wield (often retaliatory) power over people through the (mis) use of data collection is sobering at the very least.

When I agreed to join the forum I was not sure exactly what was expected from me. I decided to go for some food for thought about three basic phrases used in the information gathering business, and how the notion of consent is applied to them.

The first phrase is “bulk collection.” Bulk collection is the wholesale acquisition and storage of data for the purposes of subsequent trawling and mining in pursuit of more specific “nuggets” of actionable information. Although signals intelligence agencies such as the GCSB are known for doing this, many private entities such as social media platforms and internet service providers also do so. Whereas signals intelligence agencies may be looking for terrorists and spies in their use of filters such as PRISM and XKEYSCORE, private entities use data mining algorithms for marketing purposes (hence the targeted advertisements on social media).

“Mass surveillance” is the ongoing and undifferentiated monitoring of collective behaviour for the purposes of identifying, targeting and analysing the behaviour of specific individuals or groups. It is not the same thing as bulk collection, if for no other reason than it has a more immediate, real-time application. Mass surveillance is done by a host of public agencies, be it the Police via CCTV coverage of public spaces, transportation authorities’ coverage of roadways, railroads and airports,  local council coverage of recreational facilities and areas, district health board monitoring of hospitals, etc. It is not only public agencies that engage in mass surveillance. Private retail outlets, shopping centres and malls, carparks, stadiums, entertainment venues, clubs, pubs, firms and gated communities all use mass surveillance. We know why they do so, just as we know why public agencies do so (crime prevention being the most common reason), but the salient fact is that they all do it.

“Targeted spying” is the covert or surreptitious observation and monitoring of targeted individuals and groups in order to identify specific activities and behaviours. It can be physical or electronic (i.e. via direct human observation or video/computer/telephone intercepts). Most of this is done by the Police and government intelligence agencies such as the SIS, and most often it is done under warrant (although the restrictions on warrantless spying have been loosened in the post 9/11 era). Yet, it is not only government security and intelligence agencies that undertake targeted spying. Private investigators, credit card agencies, debt collectors, background checking firms and others all use this as a tool of their trades.

What is evident on the face of things is that all of the information gathering activities mentioned here violate not only the right to privacy but also the presumption of innocence, particularly the first two. Information is gathered on a mass scale regardless of whether people are violating the law or, in the case of targeted spying, on the suspicion that they are.

The way governments have addressed concerns about this basic violation of democratic principles is through the warrant system. But what about wholesale data-gathering by private as well as public entities? Who gives them permission to do so, and how?

That is where informed consent comes in. Informed consent of the electorate is considered to be a hallmark of robust or mature democracies. The voting public are aware of and have institutional channels of expression and decision-making influence when it comes to the laws and regulations that govern their communal relations.

But how is that given? As it turns out, in the private sphere it is given by the phrase “terms and conditions.” Be it when we sign up to a social media platform or internet service, or when we park our cars, or when we enter a mall and engage in some retail therapy, or when we take a cab, ride the bus or board a train, there are public notices governing the terms and conditions of use of these services that include giving up the right to privacy in that particular context. It may be hidden in the fine print of an internet provider service agreement, or on a small sticker in the corner of a mall or shop entry, or on the back of a ticket, but in this day and age the use of a service comes attached with it the forfeiture of at least some degree of privacy. As soon as we tick on a box agreeing to the terms or make use of a given service, we consent to that exchange.

One can rightly argue that many people do not read the terms or conditions of service contracts. But that is the point: just as ignorance is no excuse for violation of the law, ignorance of the terms of service does not mean that consent has not been given. But here again, the question is how can this be informed consent? Well, it is not.

That takes us to the public sphere and issues of governance. The reality is that many people are not informed and do not even think that their consent is required for governments to go about their business. This brings up the issue of “implicit,” “implied” or inferred” consent. In Latin American societies the view is that if you do not say no then you implicitly mean yes. In Anglophone cultures the reverse is true: if you do not explicitly say yes than you mean no. But in contemporary Aotearoa, it seems that the Latin view prevails, as the electorate is often uninformed, disinterested, ignorant of and certainly not explicitly consenting to many government policy initiatives, including those in the security field and with regards to basic civil liberties such as the right to privacy and presumption of innocence.

One can argue that in representative democracy consent is given indirectly via electoral processes whereby politicians are elected to exercise the will of the people. Politicians make the laws that govern us all and the people can challenge them in neutral courts. Consent is given indirectly and is contingent on the courts upholding the legality if not legitimacy of policy decisions.

But is that really informed contingent consent? Do we abdicate any say about discrete policy decisions and legislative changes once we elect a government? Or do we broadly do so at regular intervals, say every three years, and then just forget about having another say until the next election cycle? I would think and hope not. And yet, that appears to be the practice in New Zealand.

Therein lies the rub. When it comes to consenting to intrusions on our privacy be they in the private or public sphere, we are more often doing so in implicit rather than informed fashion. Moreover, we tend to give broad consent to governments of the day rather than offer it on a discrete, case by case, policy by policy, law by law basis. And because we do so, both public authorities and private agencies can collect, store, manipulate and exchange our private information at their discretion rather than ours.

Media Link: Political Risk and Sustainable Enterprise.

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I was invited by the nice folk at sustainnews.co.nz to contribute a short essay related to sustainable economics from my perspective as a geopolitical and strategic analysis consultant. The essay wound up  making the connection between political risk and sustainable enterprise, and more importantly, the relationship between sustainable enterprise and democracy. You are welcome to view it here.

Confronting executive branch excess.

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Recent court victories by Jane Kelsey and Jon Stephenson have vindicated those who have long complained about the culture of excess that permeates the National government’s cabinet. Excess and abuse of authority preceded the current government but this one has taken the practice to art form. It has resulted in allegations of corruption and behaviour such as that outlined in Nicky Hager’s Dirty Politics, and it has compromised the integrity of the DPMC, GCSB, NZDF, Ombudsman and SIS in doing so. If it did not openly encourage, at a minimum it facilitated managerial excess in agencies “overseen” by a variety of ministerial portfolios. The combination of ministerial and managerial excess–executive excess, to re-coin the phrase–is malignant in a liberal democracy.

Apparently the courts, or perhaps better said, two High Court judges, have caught on to the problem. Although the reasoning of the judge that forced the Stephenson settlement has not been made public, the judge in the Kelsey versus Groser case made abundantly clear that the “unlawful” behaviour exhibited by Groser and his staff included the Office of the Ombudsman as well as abuse of process. Likewise, the settlement of the Stephenson case involved not only a payment but a retraction and statement of regret by the NZDF as an institution, rather than by the command officer who was the subject of the defamation lawsuit. That suggests that more than one individual and branch of government may have had a hand in slandering Mr. Stephenson. Yet no independent review of their actions has been done.

There are other instances where the independence and integrity of reviewing agencies have come into question. Think of the Police Complaints Authority and the skepticism with which its findings are held. Think of past findings (such as during the Zaoui case) by the Inspector General of Intelligence and Security. Think of the way Crown Law has behaved in several high profile politically charged cases. Although adjustments have been made to some oversight agencies like the IGSI and not all oversight agencies are uniformly compromised, there appears to be a necrosis spreading across the system of institutional checks and balances in Aotearoa.

Those who regularly submit Official Information Act (OIA) requests will already know that the process is routinely abused, especially but not exclusively by security services. Delays beyond the mandated time frame for response are common. Censoring of material prior to release is common. So is the Ombudsman’s practice of upholding decisions to withhold or censor material on broadly defined national security grounds. Cynics might say that is a case of one hand washing the other. Others might go further and say that the problem is systemic rather than random and occasional. However skepticism is voiced, there is a sense that when it comes to the Ombudsman and other oversight agencies, they are more about whitewashing than honest scrutiny.

This again raises the issue of politically neutral, independent and transparent oversight. I have written a fair bit on the need for independent oversight of intelligence agencies above and beyond the Inspector General of Intelligence and Security, Commissioner of Warrants and current Select Committee on Intelligence and Security. I have not written about the problems with the Office of the Ombudsman and treatment of OIAs. But it should be clear by now that when it comes to democratic oversight of executive departments and those that lead them, New Zealand is hollow at its core.

Readers may recall that I have written about horizontal and vertical accountability in the democratic state. This academic concept finds real meaning in this case. Beyond the problem of vertical accountability in a country where electoral preferences are the subject of poll-driven media manipulation by government PR agents, elite cronyism is the norm and where civil society organisations are weak in the face of that, there is a serious lack of horizontal accountability in New Zealand. Agencies such as the Ombudsman that are entrusted with overseeing the behaviour of politicians and senior state managers  are seemingly subordinate (or at least submissive) to them. With some notable exceptions, when it comes to executive excess even the courts appear to have become as much instruments as they are arbiters of government policy and behaviour.

The first question that has to be asked is when does ministerial skirting or manipulation of the rules rise to the level of criminal offence? Is the complicity of more than one government entity (say, MFAT and the Ombudsman) in circumventing or obstructing OIA requests a trigger for a criminal investigation?  If not, what is? If so, who prosecutes the offence given current institutional arrangements?

There are a number of reviews and investigations of government agencies already underway. There are Royal Commissions on matters of policy. Private prosecutions are possible. Constitutional experts may know the answer, but I wonder if there also is an overarching investigatory body or process with legal authority that can look into the system of institutional (horizontal)  accountability and oversight mechanisms currently operative in the country. I ask because from where I sit the system looks broken.

So much for intelligence community reform.

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It turns out that nearly 5 months after getting re-elected, the government has decided on the composition of the Intelligence and Security Committee (ISC). Besides himself as Chair of the ISC, the Prime Minister gets to select two members from the government parties and the Opposition Leader gets to select one member from opposition parties.  In both cases the respective Leaders are expected under Section 7 (1) (c,d) of the 1996 Intelligence and Security Committee Act to consult with the other parties on their side of the aisle before selecting the remaining members of the committee. The language of the Act is quite specific: “c) 2 members of the House of Representatives nominated for the purpose by the Prime Minister following consultation with the leader of each party in Government: (d) 1 member of the House of Representatives nominated for the purpose by the Leader of the Opposition, with the agreement of the Prime Minister, following consultation with the leader of each party that is not in Government or in coalition with a Government party.” (1996 ISCA, pp. 6-7).

Not surprisingly the government has nominated two National MPs, Attorney General Chris Finlayson and Justice Minister Amy Adams, for membership on the ISC. It is not clear if ACT, the Maori Party and United Future were consulted before their selection. What is more surprising is that Andrew Little nominated David Shearer and did not consult with opposition parties before making his selection. While Shearer is a person with considerable international experience and has been a consumer of intelligence (as opposed to a practitioner) during his career, Mr. Little has been neither. In fact, it can be argued that Mr. Little has the least experience of all the proposed members when it comes to issues of intelligence and security, which means that he will have to lean very heavily on Mr. Shearer if he is not not be overmatched within the ISC.

Moreover, in past years Russell Norman, Peter Dunne and Winston Peters have been on the ISC, so the move to re-centralise parliamentary oversight in the two major parties represents a regression away from the democratisation of representation in that oversight role. Since these two parties have been in government during some of the more egregious acts of recent intelligence agency misbehaviour (for example, the Zaoui case, where intelligence was manipulated by the SIS to build a case against him at the behest of or in collusion with the 5th Labour government, and the case of the illegal surveillance of Kim Dotcom and his associates by the GCSB in collusion or at the behest of the US government under National, to say nothing of the ongoing data mining obtained via mass electronic trawling under both governments), this does not portend well for the upcoming review of the New Zealand intelligence community that this ISC is charged with undertaking.

The Greens have expressed their disgust at being excluded and have, righty in my opinion, pointed out that they are the only past members of the ISC that have taken a critical look at the way intelligence is obtained, analysed and used in New Zealand. But that appears to be exactly why they were excluded. According to John Key,  Labour’s decision was “the right call” and he “totally supports it.” More tellingly, Mr. Key said the following: “A range of opposition voices from the minor parties could railroad the process. I don’t think the committee was terribly constructive over the last few years, I think it was used less as a way of constructing the right outcomes for legislation, and more as a sort of political battleground” (my emphasis added).

In other words, Russell Norman took his membership on the ISC seriously and did not just follow along and play ball when it came to expanding state powers of search and surveillance under the Search and Surveillance Act of 2012 and GCSB Act of 2014.

That is a very big concern. Mr. Key believes that the “right” outcomes (which have had the effect of expanding state espionage powers while limiting its accountability or the institutional checks imposed on it) need to be produced by the ISC when it comes to the legal framework governing the intelligence community. Those who would oppose such outcomes are not suitable for membership, a view with which Andrew Little seems to agree.

This is so profoundly an undemocratic view on how intelligence oversight should work that I am at a loss for words to  explain how it could come from the mouth of a Prime Minister in a liberal democracy and be tacitly seconded by the Leader of the Opposition–unless they have genuine contempt for democracy. That is a trait that W. Bush, Tony Blair and John Howard shared as well, but what does that say about the state of New Zealand democracy?

Mr. Little has given his reason to exclude Metiria Turei of the Greens from ISC membership as being due to the fact the Mr. Norman is stepping down in May and Mr. Little wanted “skills, understanding and experience” in that ISC position. Besides insulting Ms. Turei (who has been in parliament for a fair while and co-Leader of the Greens for 5 years), he also gave the flick to Mr. Peters, presumably because that old dog does not heel too well. As for Mr. Dunne, well, loose lips have sunk his ship when it comes to such matters.

The bottom line is that Mr. Little supports Mr. Key’s undemocratic approach to intelligence oversight. Worse yet, it is these two men who will lead the review of the NZ intelligence community and propose reform to it, presumably in light of the debacles of the last few years and the eventual revelations about NZ espionage derived from the Snowden files.

As I said last year in the built-up to the vote on the GCSB Amendment Act,  I doubted very much that for all its rhetorical calls for an honest and thorough review process that led to significant reform, Labour would in fact do very little to change the system as given because when it is in government it pretty much acts very similar to National when it comes to intelligence and security. If anything, the differences between the two parties in this field are more stylistic than substantive.

What I could not have foreseen was that Labour would drop all pretence of bringing a critical mindset to the review and instead join National in a move to limit the amount of internal debate allowable within the ISC at a time when it finally had an important task to undertake (in the form of the intelligence community review).

As a result, no matter how many public submissions are made, or how many experts, interest groups and laypeople appear before the ISC hearings, and how much media coverage is given to them, I fear that the end result will be more of the same: some cosmetic changes along the margins, some organisational shuffles and regroupings in the name of streamlining information flows, reducing waste and eliminating duplication of functions in order to promote bureaucratic efficiency, and very little in the way of real change in the NZ intelligence community, especially in the areas of oversight and accountability.

From now on it is all about going through the motions and giving the appearance of undertaking a serious review within the ISC. For lack of a better word, let’s call this the PRISM approach to intelligence community reform.

LINK: The Intelligence and Security Committee Act 1996.

Blog Link: Slater/Key/OIA/SIS–irrefutable proof of the PM’s lies.

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Not that readers of KP will need much convincing, but Selwyn Manning has written a decisive essay on why the PM is lying about his involvement in the Slater/SIS/OIA fiasco. To do so he uses the State Services Commission’s guidelines for the release of sensitive information. The question now is twofold: 1) should NZ trust an individual as PM who overtly involves himself in political dirty tricks such as those uncovered by Nicky Hager? 2) should NZ trust a PM who repeatedly bald faced lies to the public on matters of considerable import?

As the saying goes, we may be stupid but we are not idiots.

Anyway, read the proof for yourself.

Why Throw in the Towel?

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In the wake of Nicky Hager’s latest revelations, Chris Trotter has penned a cynical defense of dirty politics as being the norm. For Chris, when it comes to politics “(t)he options are not fair means or foul: they are foul means or fouler.”

Idiot Savant at No Right Turn categorically rejects this view. I agree with him and can only add that either Chris has lost his ideological bearings or has consciously decided to join the Dark Side.

The Standard reprinted the NRT post and I commented on it there. Here is what I wrote:

“The stability of democracy is based on mutual contingent consent, not only between capitalists and workers but between opposing political factions. Mutual contingent consent requires that all actors accept mutual second best outcomes (that is, no one gets their preferred outcome all of the time), something that is evident, for example, in compromises over wages and employment conditions at the bargaining table or in the lobbying of political parties over legislation. “Winning” is therefore temporary and tempered by the pursuit of self-limiting strategies in pursuit of the mutual second best. Otherwise the political game descends into zero-sum self-interested maximisation of collective opportunities. That is not democracy, even if there are those within the democratic system who adhere to such views.

This is why Chris is wrong. He mistakes the venal pursuits of a political few for the general substance of democracy as a political form. The pursuit of dirty politics represents a fundamental corrosion of democratic principle and practice. It reflects a fundamental contempt for the foundational tenets of this type of governance. That this contempt is channeled into underhanded tactics by some does not undermine the core values upon which democracy rests and in fact serves to underscore what democracy is not. That the resort to dirty politics in NZ has at its core a group of people with pathological tendencies and profoundly disagreeable personalities is further proof that their style of play is not politics as usual.

Chris may be a bit jaded by years of fighting the good fight in losing wars. He seems to given up all hope that politics can be played cleanly. But he and many others (including some on the Right) would not have fought, and continue to fight, if they did not think that there was a better way to do things in pursuit of a just society. Mr. Slater, Mr. Ede, Mr. Bhatnagar, Ms. Odgers, Judith Collins and John Key clearly do not, but that does not mean that democracy as a whole is reducible to their contemptible view of politics.”

Let us be crystal clear. There is no moral equivalence between what the Left does or may wish to do versus what the organised dirty tricks cell centred around Cameron Slater does. Moreover, what Slater and company do centrally underpins not just how National engages politics, but how ACT has done as well. In contrast, Left activist groups may sputter about “direct action,” hold demonstrations and on occasion undertake animal liberations or environmental defense by climbing into trees or blocking trains, but they do not systematically attempt to uncover dirty laundry in order to smear, blackmail or undermine opponents within and outside their partisan ranks. They do not take covert money in order to cut and paste ghost written attack columns supplied by others. They do not get favoured backdoor access to sensitive government documents based upon their partisan, when not ministerial, connections. Perhaps that is why they are less effectual than those on the Dark Side.

The institutional Left centred in the Labour Party may gossip about their rivals across the aisle and backstab each other in factional disputes, but even then there are limits to where they will go in the pursuit of “winning.” The Slater-led dirty tricksters have no such limits.

Whatever his motivations, Chris needs to reconsider his position. There still is room for the good fight to be fought fairly even if the opponent does not. Contrary to what John Key believes, that applies as much to politics as it does to sports.

Another National double standard.

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Maurice Williamson is forced to resign as Minister because he made a phone call to the police asking them to be undertake a thorough review and be “on solid ground” when investigating a domestic violence incident involving a wealthy Chinese friend of his who invested a lot of money in New Zealand (the same Chinese fellow granted citizenship over the objections of immigration authorities, and who donated more than NZ$ 20 thousand to National in 2012).

Judith Collins retains her ministerial portfolios in spite of revelations that she interceded with Chinese officials on behalf of her husband’s export company while on an official visit to China that had nothing to do with exports or trade.

What is similar and what is different about the two cases? They are similar in that they both involve Chinese nationals with economic ties to the National party or entities linked to it. They are similar in that the ministerial interventions were in violation of the cabinet manual regarding conflicts of interest. They also represent obvious forms of political influence peddling.

How are they different? Collins is a a key player on National’s front bench, whereas Williamson is on the outers with National’s heavy hitters. Thus he is expendable while she is not.

Comparatively speaking, Williamson’s crime was arguably less than that of Collins. He made a call on behalf of a constituent urging Police diligence when investigating the charges against his friend, then left the matter at that. The fact that rather than tell the minister to buzz off the cops bent over backwards to satisfy him that they were on “solid ground” before prosecuting is a police issue, not a Williamson issue (the Police decided to prosecute in any event, with Mr. Liu eventually pleading guilty to two charges of domestic violence).

Collins used taxpayer funded official travel to take time out of her official schedule to divert and meet with Chinese business associates of her husband over dinner in the presence of an unnamed Chinese government official at a time when her husband’s business interests in China were being hindered by official reviews of New Zealand based export contracts. Although she had no real business being there, she brought an aide with her, adding to the impression that her presence at that dinner had the stamp of official approval.

Of the two, which is more obviously a conflict of interest and which has the clear stench of corruption wafting over it? Of the two, which one would be viewed more dimly by the likes of Transparency International (the anti-corruption agency that habitually lists NZ amongst the least corrupt countries to do business in)?

Hypocrisy much in the handling of the two cases by the Prime Minister? You be the judge, by I think that there is.

Disappointing.

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Although I always knew that “hope and change” was a rhetorical chimera rather than a realizable objective, and understand full well that the US presidency is a strait jacket on the ambitions of those who occupy its office, I am one of those who have been disappointed by the Obama administration on several counts.

I fully understand that he inherited a mess and has done well to dig out from under it, particularly with regard to revitalizing the economy and disengaging from two unpopular wars. With some caveats, I support the drone campaign against al-Qaeda. I support his health care reforms, his support for gay marriage and his efforts to promote renewable energy. I support his measured endorsement of the Arab Spring coupled with his cautious approach to intervention in Libya and Syria, where he has used multilateral mechanisms to justify and undertake armed intervention against despotic regimes (US intervention being mostly covert, with the difference that in Libya there was a no-fly zone enforced by NATO whereas in Syria there is not thanks to Russian opposition).

But I am disappointed in other ways. The failure to close the detention facility at the Guantanamo Bay Marine and Naval base, and the failure to put those detained there on trial in US federal courts because of local political opposition, are foremost amongst them. Now, more egregious problems have surfaced.

It turns out that after the attacks on the US consulate in Benghazi, Libya, on September 11, 2012,  the administration removed from its “talking points” for press briefings and interviews the facts that the attack was conducted by al-Qaeda affiliates (and were not a spontaneous response to an anti-Islamic on-line video, as was claimed), that repeated requests for security reinforcement at the consulate before the attacks were denied in spite of warnings about imminent threats, and then military assets were withheld during the incident (which lasted eight hours).

The public deception was out of proportion to the overall impact of the attack. Whether or not al-Qaeda affiliates conducted it, serious questions about the lack of security were bound to be raised. The White House appears to have panicked under campaign pressure about the significance of the date of the attack and who was attacking (a purely symbolic matter), compounding the real issue of State Department responsibility for the security failures involved.

While not as bad as the W. Bush administration fabricating evidence to justify its rush to war in Iraq, it certainly merits condemnation.

There is more. It turns out the IRS (the federal tax department, for those unfamiliar with it), undertook audits of right-wing political organizations seeking tax-exempt status as non-profit entities. IRS auditors were instructed to use key words and phrases such as “Patriot,” “Tea Party” and other common conservative catch-phrases as the basis for deeper audits of organizations using them. That is against the law, albeit not unusual: the W. Bush administration engaged in the same type of thing.

Most recently it has been revealed that the Department of Justice, led by Attorney General Eric Holder (a recent visitor to NZ), secretly obtained two months of phone records from over 100 Associated Press reporters and staff, to include their home land lines, office and cell phones (in April-May 2012). The purpose was to uncover leaks of classified information about counter-terrorism operations to reporters after AP managers refused to cooperate with government requests to divulge the sources of leaks. That made the phone tapping legal. But there was an option: the government could have subpoenaed those suspected of receiving leaks and forced them to testify under oath as to their sources.

The main reason I am disappointed is that the Obama administration should have been better than this. I never expected the W. Bush (or the Bush 41, Reagan or Nixon administrations) to do anything but lie, cover up, fabricate, intimidate and manipulate in pursuit of their political agendas. They did not disappoint in that regard. But I do expect Democrats in general, and Obama in particular, to behave better in office. They are supposedly the defenders of the common folk, upholders of human rights and civil liberties, purportedly staunch opponents of corporate excess and abuses of privilege.

Republicans inevitably use public office to target domestic opponents and bend the law in favor of the rich and powerful. Democratic administrations are supposed to be better because, among other things, they know the consequences of such manipulation. Yet apparently they are not, even if these events pale in comparison to the crimes and misdemeanors of Republican administrations.

I am not being naive. I spent time working in federal agencies under both Republican and Democratic administrations in the 1980s and 1990s, and the difference in approach to the public trust, at least in the fields that I worked in, were great and palpable. It would seem that the things have changed since then.

Democratic governance often involves the compromise of principles in the pursuit of efficiency or cooperation in policy-making. There are always grey areas in the conduct of national affairs, and there are events and actions where reasons of necessity make secrecy more important than transparency in governance. The actions outlined above are neither.

I still prefer Obama to any of the GOP chumps that rail against him. But as John Stewart makes clear in this funny but scathing (and profane) critique, he and his administration have just stooped closer to their level.

Hence my disappointment.